### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

FILED WEST VIRGINIA UNITED HEALTH SYSTEMS, May 21, 2018

EDYTHE NASH GAISER , CLERK 

### Employer Below, Petitioner SUPREME COURT OF APPEALS

OF WEST VIRGINIA 

### vs.) No. 18-0005 (BOR Appeal No. 2052120) (Claim No. 2016020454)

TAMMY PRICE, Claimant Below, Respondent

MEMORANDUM DECISION

Petitioner, West Virginia United Health Systems by Jeffrey M. Carder, its attorney, appeals the decision of the West Virginia Wo rkers’ Compensation Board of Review. Tammy Price, by Robert L. Stultz, its a ttorney, filed a ti mely response.

The issue on appeal is the compensability of additional diagnoses and medical treatment. On February 21, 2017, the claims administrator de nied a request to add thoracic strain and sacroiliac sprain as compensable components of the claim. The clai ms administrator also denied payment for a bill from WVU Me dical Corporation for a date of service of December 19, 2016, in a separate February 21, 2017, decision. The Office of Judges affi rmed both of the decisions in its July 21, 2017, Order. The Order was revers ed and vacated by the Board of Review on November 30, 2017. The Court has carefully review ed the records, written arguments, and appendices contained in the briefs, and the case is mature for consideration.

This Court has considered the parties’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and the deci sional process would not be significantly aided by oral argument. Upon consideration of the st andard of review, the briefs, and the record presented, the Court finds no substantial questi on of law and no prejudicial error. For these reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate

Procedure.

Ms. Price, a nursing assistant, was injure d on February 5, 2016, when she slipped on a mat at work. Her claim was held compensable fo r a low back sprain/strain on February 17, 2016. Prior to her work injury, Ms. Price had been tr eated by Robert Gerbo, M.D., for six months in 2009 for low back pain during which time Dr. Ger bo noted that lumbar x-rays showed loss of lordotic curvature. A December 9, 2009, lumbar MR I revealed degenerated L5-S1 intervertebral

disc with a small midline herniation associated w ith mild extradural mass effect with no neural foraminal encroachment. In June of 2015, Ms. Price was treated by Michal Matela, M.D., for a

1chief complaint of lower back pain. Dr. Matela diagnosed muscle spasm of the back and back pain.

After the February 5, 2016, injury, Dr. Gerbo treated Ms. Price for a chief complaint of low back pain. On March 1, 2016, Dr. Gerbo noted the lower part of Ms. Price’s back was improved, but the part inferior to her bra line was still proble matic. She had resumed modified duty. After she was released to full duty work on March 11, 2016, Dr. Gerbo noted Ms. Price’s pain was worse in the left thoracolumbar area, but she also had pain in the left lower lumbar area. Dr. Gerbo diagnosed lumb ar/thoracic back sprain which wa s worse without an y precipitating event. He noted the main area of concern was the lower thoracic/upper lumbar area and opined it was related to her work injury. A March 25, 2016, thoraco-lumbar spine MRI was unremarkable with no evidence of acute fracture or compression deformity. Mild disc desiccation at T9-T10.

Bill Hennessey, M.D., performed an indepe ndent medical evaluation on June 9, 2016. He noted Ms. Price reported no relief of her symp toms since the work injury. On examination, Ms. Price had pain to palpation in her left lumbar paraspinal muscles and in her left lower thoracic paraspinal muscles. The pain limited her from going through a full range of motion, and she had pain with trunk flexion and extension. Dr . Hennessey noted Ms. Price’s straight leg raise testing was negative bilaterally. Dr. Hennessey determined that the subjective pain complaints were not supported by the objective medical evid ence. He opined that there was insufficient

medical evidence of residual left lumbar st rain. In Dr. Hennessey’s opinion, Ms. Price had reached maximum medical improvement from the February 5, 2016, soft tissue strain. He opined

that there was no further need for medical tr eatment because there was no residual physical impairment on which to base treatment. Also, there was no need to keep doing what did not work. Dr. Hennessey asse ssed 0% impairment.

Dr. Gerbo continued to treat Ms. Price in July of 2016.On July 12, 2016he saw Ms. Price for left-sided low back pain. She reported havi ng received trigger point injections on June 13, 2016, and she no longer had any thoracic or lumb ar pain. Dr. Hennessey diagnosed thoraco

lumbar and lower lumbar sprains, much improved. Ms. Price continued to ha ve left SI pain and tenderness. In a letter dated July 26, 2016, Dr. Ge rbo noted Ms. Price had returned to his office for treatment sooner than expected with a chief complaint of worse back pain. On July 20, 2016, Ms. Price felt a “pop” in the thoraco-lumbar spine while doing a compression on a mannequin during CPR training. She also experienced an increas e in left sacroiliac pa in. Ms. Price reported pain radiation to the posterior thighs and ting ling in both feet. On examination, Ms. Price had limited range of motion of the t horacic and lumbar spine. Dr. Ge rbo diagnosed thoracic sprain and strain, lumbar strain, and sacroiliac sprai n. He opined this was not a new injury but a worsening of Ms. Price’s previ ous condition. Dr. Gerbo opined th at the claim needed to be reopened for physical therapy. Ms. Price was also seeking treatment with a pain management physician.

Ms. Price testified via deposition on Janua ry 12, 2017, that she worked in perioperative care which required her to push beds, gurneys, and wheelchairs; take vital signs; and do a lot of walking in order to move patients from plac e to place. She was injured on February 5, 2016, when she was pulling a mat next to a desk a nd tweaked her body. She aggravated her back on

2July 20, 2016, when she was doing CPR training. Sh e has been off of work since July 22, 2016. Between February and July of 2016, she was onl y able to work light duty and she still experienced exacerbations of her pain. She continued to have pain in her mid and lower left side.

On February 21, 2017, the claims administrator denied Dr. Gerbo’s re quest to add lumbar strain, thoracic strain, and sacr oiliac sprain as compensable com ponents of the claim because Ms.

Price suffered a new isolated fort uitous event on July 20, 2016, wh ich resulted in the need for treatment and the addition of the new diagnoses. In a separate decision on February 21, 2017, the claims administrator denied a request for paym ent for a bill from WVU Medical Corporation for a date of service of December 19, 2016, as the bi ll related to the new injury of July 20, 2016.

The Office of Judges affirmed the claims ad ministrator’s decisions in its July 21, 2017, Order. It found West Virginia United Health Systems’ argument that Ms. Price suffered a subsequent intervening injury in a completely di fferent area of her back to be persuasive. The Office of Judges found that no evidence of a lu mbar spine problem was seen on the March 11, 2016, x-ray. Additionally, the March 25, 2011, MRI was unremarkable for the thoraco-lumbar spine. Ms. Price was determined to be at maxi mum medical improvement prior to the July 20, 2016, injury. Moreover, Dr. Gerbo noted Ms. Price’s pain in her thoracic and lumbar regions had resolved as of July 12, 2016. It determined th at the additional diagnoses and December 19, 2016, medical treatment were not causally related to the compensable injury.

On November 30, 2017, the Board of Review reversed and vacated the Office of Judge’s July 21, 2017, Order. It found that the analysis and conclusions of the Office of Judges was wrong in light of the evidence. The Board of Re view noted the February 5, 2016, injury was held compensable for a low back sprain/strain. Dr. Ge rbo found the lower part of the back improved on March 1, 2016, but found the part around the br a line was stil l problematic and diagnosed lumbar/thoracic back sprain, which was worse without any precipitating event. The Board of Review found that the Office of Judges substituted its opinion for the opinion of the medical expert. Dr. Gerbo treated Ms. Price before and after she participated in the CPR training event. It found Ms. Price experienced a worsening of her symptoms during the CPR training, but she did not suffer an intervening injury to completely diff erent areas of her back. Therefore, the Board of Review granted Ms. Price’s request for lumbar stra in, thoracic strain, and sacroiliac sprain to be held compensable components of the claim. It al so granted Ms. Price’s request for payment of the December 19, 2016, medical bill.

After review, we agree with the reasoning an d conclusions of the Board of Review. The Ms. Price continued to experience symptoms rela ted to the February 5, 2016, injury as late as June 13, 2016, when she received trigger point in jections. Additionally, Dr. Gerbo documented thoracic pain in March of 2016. Therefore, the Board of Review did not err when it found Ms. Price’s lumbar strain, thoracic strain, and sacroi liac sprain compensable. As these conditions are compensable so is the medical treatment received on December 19, 2016.

For the foregoing reasons, we find that the deci sion of the Board of Review is not in clear violation of any constitutional or statutory provision, nor is it clearly the result of erroneous

3conclusions of law, nor is it based upon a materi al misstatement or mischaracterization of the evidentiary record. Therefore, the decision of the Board of Review is affirmed.

Affirmed.

ISSUED: May 21, 2018

CONCURRED IN BY: Chief Justice Margaret L. Workman

Justice Robin J. Davis

Justice Menis E. Ketchum Justice Allen H. Loughry II

DISQUALIFIED: Justice Elizabeth D. Walker, disqualified

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